R v NEL

This is an application by His Majesty's Solicitor General for permission to refer a sentence to this court under section 36 of the Criminal Justice Act 1988 on the grounds that she regards it as unduly lenient and submits that it should be increased.

The sentence was imposed on 12 September 2025. It was a total term of 2 years' imprisonment.

The Offender had been convicted by the jury following a trial of two offences on an indictment:

The Offender had also been indicted on count 3 of the indictment with an offence of intentional strangulation, contrary to section 75A of the Serious Crime Act 2015. He was acquitted by the jury of that offence.

The Offender was 45 years old at the time of the offences and 46 years old at the date of sentencing. Both offences were committed on the same occasion, in the same sequence of events against the same victim. The judge moved to sentence at the Offender's request immediately following the verdicts of the jury. He did not therefore have the benefit of a victim personal statement dealing with any psychological harm which may have resulted from these offences. Neither did he have a pre-sentence report which might have enabled him to consider whether or not the Offender should be treated as a ‘dangerous’ offender. We are not invited by the Solicitor General to review the judge's conclusion in relation to that question, and we do not do so; we merely observe that following convictions for offences within the dangerousness regime, the best practice for a sentencing judge is to ensure that the question of dangerousness is investigated by the provision of a pre-sentence report if the judge is inclined to proceed on the basis that the offender is not dangerous. There are many cases where the circumstances of the offending itself may justify the conclusion that an offender is dangerous and in those cases a pre-sentence report may add nothing. The opposite conclusion — that an offender is not dangerous —should usually follow a careful investigation of the kind we have referred to. It is unnecessary to revisit that in the context of this case for the reason we have explained.

The victim and the Offender had been in a domestic relationship with each other for a number of years. They have a child. It is because of the fact that the child bears the Offender's surname that he (the Offender) is anonymised in these proceedings. Any person knowing the name of the child and the name of the Offender and reading this judgment would be able to identify the victim whose anonymity would thereby be compromised.

The relationship had not been without difficulty. The incident which involved this offending occurred in the early hours of 10 September 2024. Before that time they had exchanged messages with each other. Those messages concerned other relationships and infidelities and that exchange appears to have caused the Offender to arrive unannounced outside the victim's flat. They argued in the street for a considerable period of time. She said that she had told him to leave which he did not do. She also said that he was drinking wine so that he was affected by alcohol at the time when he committed the offences. The offences occurred inside the flat. Her evidence was that she had not invited him in; he disputed that during the course of the trial.

The sentencing judge did not, in the course of his sentencing remarks, make express findings of fact about that issue or other issues which were relevant to sentence. He did not say whether he accepted the evidence of the victim, or whether for some reason he rejected it. What is clear is that the jury accepted a substantial part of her evidence because they convicted the Offender of these two offences. They did not accept that he had intentionally strangled her, but it did not follow from that conclusion that they had rejected anything else. We will return later in this judgment to where that takes us in terms of the categorisation of the offending for guideline purposes.

As we have said, the victim's evidence was that he had entered her flat uninvited and she had asked him to leave but he refused to do so. He became angry. The Recorder did make a finding about that; he said that the Offender had become "very angry". He was making accusations against the victim of infidelity. But she said that he had forcefully kissed her and put his hands around her throat and bit her neck. He put his hands under her top, ripping her bra, touching her breasts. He pulled off her shorts and underwear and then very forcefully digitally penetrated her vagina. This caused her to cry. She said that he was hurting her and asked him to stop. She slapped him to try to make him stop, at which point he hit her. She said that he tried to put his penis in her mouth and that briefly he had performed non-consensual oral sex on her. He stopped for a while, but then began to kiss and bite her again, digitally penetrating her vagina once more. There appear to have been about three occasions when that happened. On the last of these he caused a tear to her labia majora which caused her excruciating pain. She began to bleed profusely. As soon as he appreciated that he had done that with that result, he panicked. He apologised. He tried to stem the flow of blood and took her in his car to the hospital where she was treated. On examination she had bite marks to her neck and there was a 5-cm tear on the inner aspect of the left labia majora. That was described as a ‘significant injury’. It required surgical repair with sutures under anaesthesia.

On arrest the Offender was interviewed. He admitted digital penetration and putting his hands on her neck. He said this was part of consensual sexual activity and he denied causing any injury or intending to cause any injury. He denied hitting her and he denied strangling her. He said that the incident involving physical contact between them had taken 10 or 15 minutes.

The Offender has some previous convictions which were correctly treated as immaterial.

At the sentencing hearing the prosecution invited the judge to treat the offence of assault by penetration as the lead offence, so that sentence would reflect the totality of the criminality involved in both convictions. The prosecution submitted that the level of harm was, for the purposes of that guideline, category 2. It was submitted that the incident was sustained and had involved uninvited entry into the home. It was also submitted that there was a level of violence involved in the assault by penetration which went beyond that which was involved in the commission of the offence itself. If that submission had been accepted, that would lead to a starting point of 6 years' imprisonment and a category range of 4 to 9 years' imprisonment.

The prosecution made congruent submissions in relation to the categorisation of the wounding offence. In truth, in the circumstances of this case, the wounding offence would add nothing to a properly calculated sentence involving the violence inflicted upon the victim at the same time as the assault by penetration. It was closely connected with that sexual assault and would be reflected fully as an aggravating feature of it once it was either admitted or proved.

The prosecution also submitted that the domestic context of the violence and the offences was material and operated as an aggravating factor having regard to the relevant overarching guideline for offences involving violence in or after a relationship of this kind.

The prosecution accepted that there was mitigation involved in the lack of relevant previous convictions and in the conduct of the Offender immediately after the offence in taking the victim to hospital and in his good work record.

Mr Siddle, who appeared for the Offender before the Crown Court and who has appeared before us today in responding to the Reference, submitted that the offence of assault by penetration should properly have been categorised as a category 3B offence. Before us he submits that the judge's findings of fact, such as they were, as expressed in the sentencing remarks do not justify the facts necessary to place the offence in the higher category of 2B. Mr Siddle observes that in selecting the sentence that he did, the judge must have rejected some of the evidence given by the victim, which if accepted would require a longer sentence.

Mr Siddle has reminded us, as he reminded the judge, of some further matters of personal mitigation involving the caring responsibilities of the Offender and his grief following the recent death of his brother. He has suffered from some ill-health involving anxiety and depression. Imprisonment for him will have and has had serious consequences because of his employment and because he lives in a home which he owns subject to a mortgage.

It follows from that review of the facts and that review of the submissions which were placed before the judge and which have been placed before us that this Reference involves one simple question: was the judge entitled to deal with this as a case involving category 3 harm or did the circumstances of the offending require the offence of assault by penetration to be classified as an offence involving category 2 harm? If the answer is that the proper classification of the offence for guideline purposes was 2B, then the sentence is unduly lenient and must be increased; if not, then the judge's sentence is justifiable.

The factors which need to be present to elevate an offence of assault by penetration into category 2 for harm purposes are: severe psychological or physical harm, penetration using large or dangerous objects, additional degradation or humiliation, abduction, prolonged detention or sustained incident, violence or threats of violence beyond that which is inherent in the offence, forced or uninvited entry into the victim's home, and victim is particularly vulnerable due to personal circumstances.

As we have indicated, there is a level of doubt created by the way in which the judge expressed his sentencing remarks about whether this case involved uninvited entry into the victim's home. There is however no doubt that the incident can properly be described as sustained. The Offender's description in interview of the physical interaction between the two of them, all of it against her will, lasting over a period of 10 minutes or more justifies that. But moreover, it is the case that the significant injury to the victim's labia was caused by a second or third act of digital penetration following a brief pause after the first. All of that justifies a conclusion that this incident was to a degree sustained. Whether that degree would be sufficient on its own to take the case into category 2 is relegated to a secondary issue by the undoubted fact that this victim was subjected to violence beyond that which was inherent in the offence.

The Offender's defence was that this relationship had involved what is sometimes called in cases of this kind 'rough sex' (ie they had engaged consensually in the past in sexual activity involving a degree of force), and that these injuries occurred in that way on this occasion. That had been rejected by the jury as a defence to what occurred here. The biting to the neck was supported by medical evidence on examination at the hospital. That in itself is capable of amounting to violence beyond that which is inherent in the offence of penetration. The most significant aspect of that however is the injury: the 5-cm tear required a very significant degree of violence over and above the mere act of penetration. For those reasons we are entirely satisfied that the judge was required by the evidence to conclude that this was a category 2 case. He gave no reasons for rejecting the evidence of the victim and did not say that he had done so. In those circumstances, particularly where it was supported by medical evidence, the appropriate course was to sentence on the basis that the Offender had committed the offences in the way that she described.

That means that the judge took the wrong starting point. Category 2B involves a starting point of 6 years and a range, as we have said, of 4 to 9 years. The judge ought to have taken a starting point of 6 years, before moving to the next step of balancing the aggravating and mitigating factors.

The principal aggravating factor is of course the violence, but that has already been taken into account in reaching the starting point we have identified.

There were other aggravating factors if all of the evidence of the victim was accepted, but Mr Siddle's submission in relation to the judge's findings of fact does have some resonance in that regard and it may be that there is a level of lack of clarity there.

More significantly, we consider that there is here mitigation which does justify a reduction in the starting point from 6 years. The mitigating factors are the conduct of the Offender after the offence in seeking medical help for the victim, his work record and diligent way of life, and his lack of relevant previous convictions. All of that we consider requires a reduction in the starting point from 6 years to 5 years, but the sentence of 5 years is inescapable in the circumstances of this case; this was a very serious attack on this woman.

For all those reasons we quash the sentences imposed by the judge. We substitute for them a sentence of 5 years for count 1, the assault by penetration. The concurrent term imposed by the judge is unaffected. It is likely, we think, that the victim surcharge as imposed by the judge is now correct, in which case it does not need to be changed. If it does, then it should be.

That therefore is the outcome of the case. The Offender is required to surrender to custody and to serve the balance of the sentence we have just imposed.